Nahmod Law

Introduction

I blogged some time ago about anti-SLAPP statutes in state courts. Readers will want to consult my post of July 23, 2010, for that discussion and relevant background.

As set out in that post, a SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed by the plaintiff in order to chill the exercise of the defendant’s First Amendment right to petition the government for redress of grievances by obtaining a financial advantage over the defendant in litigation.

In contrast, an anti-SLAPP statute provides procedural and substantive protection for the defendant in cases where the plaintiff’s lawsuit is grounded on a good faith communication in furtherance of the right to petition.

Anti-SLAPP statutes in federal courts

An interesting question is whether and to what extent federal courts may or even must enforce anti-SLAPP statutes in federal proceedings. Consider in this regard the First Circuit’s decision in Godin v. Schencks, 629 F.3d 79, 86 (1^st Cir. 2010), a case involving a section 1983 procedural due process claim against various defendants as well as pendent state law claims against three school system employees who had separately said in meetings with school officials that the plaintiff, a former principal, had acted abusively toward students.

In Godin, the First Circuit extensively analyzed the relationship between the Federal Rules of Civil Procedure and a Maine anti-SLAPP statute (Section 556) “that governs both procedure and substance in the state courts. The issue [as to the pendent state law claims] is whether Federal Rules of Civil Procedure 12(b)(6) and 56 preclude application of Section 556 in federal court.”

Confronting this issue of first impression in its circuit, the First Circuit held that Maine’s anti-SLAPP statute must be applied to the plaintiff’s state law claims against these three individual defendants.

In the court’s view, neither of these two Federal Rules was meant to control the issues under Section 556 in federal courts. In addition, the dual purposes of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)—discouraging forum shopping and avoiding inequitable administration of the laws—were best served by enforcement of Section 556. The defendants could therefore defend against the pendent state law claims under the anti-SLAPP statute.

The First Circuit observed that it was joining the Fifth and Ninth Circuits in reaching this conclusion. It cited as support Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164 (5^th Cir. 2009), and United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9^th Cir. 1999).

Note that a state’s anti-SLAPP statute should not be a defense to a section 1983 claim in federal court by virtue of the Supremacy Clause.

Introduction

The Supreme Court finally handed down its decision (PDF) in the important case of Connick v. Thompson, No. 09-571, on March 29, 2011, almost a year after I blogged about Connick in light of the Court’s grant of certiorari.  Readers should consult my post of April 6, 2010, for relevant doctrinal and other background information.

In Connick, a 5-4 decision with an opinion by Justice Thomas, the Court effectively held that local government liability for failure to train cannot be based on a single incident, even in the face of an otherwise persuasive claim of deliberate indifference because the need for training is “obvious.” Instead, the plaintiff must also show a pattern of similar constitutional violations. Justice Scalia, joined by Justice Alito, concurred. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor and Kagan.

The Facts and Issue

The § 1983 plaintiff, Thompson, was convicted of murder and spent fourteen years on death row for a crime that he did not commit because prosecutors did  not turn over to his attorney a lab report in a related case in which he had previously been convicted of attempted aggravated armed robbery. This lab report indicated that the perpetrator of the attempted armed robbery had type B blood, while the plaintiff had type O blood. Because of that conviction, the plaintiff did not testify in his own defense at his murder trial, where he was convicted. Many years later, the lab report that the prosecutors had failed to turn over was discovered, with the result that, in 1999, plaintiff’s attempted armed robbery conviction was vacated and, in 2002, his murder conviction was overturned. A subsequent murder retrial in 2003, at which plaintiff testified in his defense, resulted in a not guilty verdict.

He then sued the prosecutor’s office for damages under § 1983, in essence making a local government liability failure to train claim regarding proper training under Brady v. Maryland, 373 U.S. 83 (1963), and the due process requirement to turn over exculpatory evidence to criminal defendants. A jury awarded him $14 million, which was upheld by the district court. On appeal, a panel of the Fifth Circuit affirmed in a decision later vacated by the Fifth Circuit when it granted en banc review. However, since the en banc Fifth Circuit (in three opinions) was evenly divided, the district court’s decision was affirmed.

The basis of the jury verdict and district court judgment was twofold. First, Connick, the district attorney, was a policymaker (thus representing the prosecutor’s office) who was deliberately indifferent to an obvious need to train prosecutors regarding their obligations under Brady.  And second, the lack of Brady training was the moving force behind plaintiff’s constitutional injury. The en banc Fifth Circuit divided evenly on each of these findings.

The Court granted certiorari to decide the following Question Presented: “Does imposing failure-to-train liability on a district attorney’s office for a single Brady violation contravene the rigorous culpability and causation standards of Canton and Bryan County [where there is no history of similar Brady violations]?” As noted, the Court answered YES. Read the rest of this entry »